Legal News

Rolling Back Pay? Pregaming Next Week?s Big Discrimination Argument

By Ashby Jones

Next Tuesday, down at One First St., N.E., arguably the most important sex-discrimination case to hit the Supreme Court in many years will receive a full airing.

It’s hard to know exactly how the justices will rule, but one thing seems sure: the opinion that ultimately comes down later this year in the Wal-Mart v. Dukes case will likely dramatically alter the face of sex-discrimination litigation going forward.

Today’s LA Times contains an early walk-up piece to the arguments.

The issue basically boils down to this: Can a plaintiff rely on statistics that point to a pattern of sex discrimination in arguing that a class of women should be allowed to join together and sue an employer?

Or should a court require women to show that they have more in common than their sex and employer in order to bring a single lawsuit?

So far, the case has been hotly contested. Back in 2004, a federal judge in San Francisco ruled the case could go forward as a class action. A three-judge panel on the Ninth Circuit in 2007 agreed by a 2-1 vote. And last year, an en banc panel of the Ninth Circuit agreed by a 6-5 vote.

Brad Seligman, the lawyer for the plaintiffs, puts his argument this way: “To prove these cases, you rely on statistics. And now all the records are electronic. It’s all there at a keystroke,” said Seligman. “Women are treated as second-class employees at Wal-Marts from Florida to Alaska.”

According to the LAT, a statistician hired by Seligman found that at Wal-Mart, women make up about two-thirds of the hourly employees but fewer than 14% of store managers. And in nearly every job category, women earned less than men.

On the other side, lies Wal-Mart and Ted Boutrous, of Gibson Dunn. Boutrous said there is no pay difference between men and women at 90% of stores. And decisions about who is hired or promoted are made locally, they said, not because of a companywide policy. Boutrous said Seligman is trying to create a new theory of class actions based on “structural discrimination.”

So how will the case ultimately go? One would have to suspect that we’re looking at a 5-4 decision in Wal-Mart’s favor. “The court’s majority has been hostile to class actions,” Stanford Law Professor Deborah Hensler told the LAT.

At the same time, for the first time in its history, the high court will have three women on the bench for a major sex discrimination case.

Full post as published by Law Blog - WSJ.com on March 24, 2011 (boomark / email).